In R (on the application of P) v The Secretary of State for the Home Department [2017] EWCA Civ 321, the Court of Appeal considered the revised scheme for the disclosure of criminal records and, in particular, whether it appropriately balanced the aim of protecting the public with an individual's right to a private life.

Background 

The Rehabilitation of Offenders Act 1974 (the 1974 Act) introduced a scheme under which convictions and cautions (including reprimands and warnings) for criminal offences do not have to be disclosed once they have become 'spent'. A subsequent Order removes the protection from non-disclosure in certain circumstances, including in relation to questions asked in order to assess an applicant's suitability for employment in positions such as those that involve working with children and other vulnerable people.

Alongside the 1974 Act, the Police Act 1997 (the 1997 Act) created a scheme for disclosure of criminal records held by the police. Under the 1997 Act, the Disclosure and Barring Service (DBS) must issue a criminal record certificate (CRC) or an enhanced criminal record certificate (ECRC) when an application is made in the correct form. An ECRC must include information that the police reasonably believe is relevant to the enquiry made and ought to be included (known as "soft intelligence").

The original scheme required a CRC and ECRC to include all convictions and cautions, whether spent or unspent, and whatever the nature of the offence. The DBS scheme was introduced in 2013 to deal with concerns that the original scheme did not strike the right balance between upholding civil liberties and protecting the public. The DBS scheme no longer requires the disclosure of every spent conviction and caution. Instead, from 29 May 2013, the revised scheme requires disclosure of spent convictions only in the following circumstances:

  1. Where there are two or more convictions, they are always disclosable on a CRC or ECRC.
  2. Certain specified offences are always disclosable on a CRC or ECRC. They include more serious offences such as assault occasioning bodily harm (ABH) and all sexual offences.
  3. Any spent conviction in respect of which a custodial sentence was imposed.
  4. Juvenile reprimands (which remain on central records and are subject to lifelong disclosure).

The case concerned the compatibility of the DBS scheme with the European Convention on Human Rights (ECHR). Article 8 of the ECHR provides that:

  1. Everyone has the right to respect for his/her private and family life, home and correspondence.
  2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Facts 

The issue in the four linked appeals considered by the Court of Appeal concerned the balance to be struck between two important principles of social policy:

  1. Allowing those who have been convicted of criminal offences to be able, in appropriate circumstances, to put their pasts behind them and conduct their lives without reference to what they did, in some cases, many years previously.
  2. The requirement that the public be kept safe from those who, because of their past behaviour, might continue to be a risk.

Each of the four appeals in the present case concerned the 'two or more convictions' rule or the 'specified offences' rule above. Each individual concerned had had past criminal conduct disclosed by the DBS when applying for employment and argued that Article 8 of the ECHR had been violated.

  1. In the case of P, she had committed two offences of shoplifting while suffering from undiagnosed schizophrenia. She subsequently failed to appear in court and was convicted of both the theft offence and an offence under the Bail Act 1976.
  2. At the age of 13, G had engaged in consensual sexual activity with two younger boys. He was given two reprimands, which would be disclosable under the CRC scheme.
  3. In the case of W, at the age of 16 (in 1982) he had been convicted of ABH and received a conditional discharge for two years. He had no subsequent criminal history but was caught by the 'specified offences' rule.
  4. In the case of K, in 2007 she had been witnessed assaulting her three year old daughter by two passing police officers. There was evidence of redness to the face and swelling to the child's arm, who K said she had hit for refusing to do her homework. K was cautioned for ABH.

High Court decisions

The four individuals applied to the High Court challenging variously the revised scheme, whether it was compatible with their Article 8 rights and whether the information should have been disclosed in their particular cases. In two cases, the challenges were upheld and the Secretary of State appealed; in the other two cases, the challenges were rejected and the individuals appealed.

Court of Appeal decision

The Court of Appeal concluded that the DBS scheme remained deficient and in need of further improvement. While the concept of the revised scheme did not necessarily breach Article 8 of the ECHR, its application in individual cases might do so. The provisions relating to disclosure of serious offences and multiple offences were not "in accordance with the law" and were in breach of Article 8 of the ECHR. Each was required to have a mechanism for weighing the nature of the offence, the lapse of time and the relevance to the employment sought.

In relation to the 'two or more offences' rule, a more granular filter was required to take into account lapse of time, disposal and the timing and nature of the two convictions. The practicalities of such a scheme were for Parliament to decide.

In relation to the 'specified offences' rule, the Court of Appeal concluded that a mechanism or filter had to be devised to ensure that disclosure was proportionate and linked to the protection of the public so as to be necessary in a democratic society. Without that, it was difficult to see how challenges could be avoided.

Dealing specifically with the four challenges in this case, the Court of Appeal held as follows:

  1. The multiple conviction rule in P's case was a disproportionate interference with her Article 8 rights and was not necessary in a democratic society. P's convictions did not demonstrate a pattern of offending behaviour, which might legitimately be relevant to a potential employer.
  2. In G's case, although finely balanced, the Court found that the lapse of nine years since the imposition of the reprimands meant that disclosure was not necessary in a democratic society. The Court left open the issue of whether it might be justifiable for "soft intelligence" relating to the incidents to be disclosed on an ECRC, depending on the nature of the role applied for.
  3. In W's case, the disclosure of an ABH conviction 31 years after the event was not proportionate or necessary in a democratic society and could not have any relevance to an assessment of the risk he might pose to the public.
  4. K's appeal was dismissed. Her caution was not for a trivial matter and the role K had applied for was a caring position. The disclosure was in accordance with the law and was not disproportionate. Her Article 8 rights had not been violated by the disclosure.

Comment

The Court of Appeal was clear that the revised DBS scheme is not compliant with EU law and accordingly that it will need to be revised if it is to strike the right balance between the competing rights. While there was no need for a bespoke system providing an individual right of review, a filtering system for cases 'at the margin' that no longer required disclosure was feasible. The Court gave some guidance on the amendments required in order for the scheme to be in accordance with the law but declined to give detailed guidance on the practicalities of any revised scheme. The Court also noted that it was not a matter for the Court to be prescriptive about what may be required from a legislative perspective.

It will therefore be for the Government to consider appropriate mechanisms of filtering the information to be disclosed on CRCs and ECRCs, however we can expect changes to the existing DBS scheme in due course. Without changes to the scheme, as the Court predicts, it is difficult to see anything other than challenges of this nature being brought again in the future.